Administration

Australian Competition and Consumer Commission (ACCC)

Enforcement role

If the ACCC believes there has been a contravention of the CCA it may:

(1) commence proceedings for recovery of pecuniary penalty
(2) apply for injunction to restrain competition
(3) apply for divestiture order where the merger provision has been breached
(4) accept and enforce undertakings (s 87B) designed to alleviate competition concerns (especially in relation to mergers)
(5) obtain evidence pursuant to s 155, including obtaining a search warrant for search and seizure
of premises.

Authorisation

Section 88 gives the ACCC power to authorise conduct otherwise prohibited by the Act where public benefit would outweigh the anti-competitive detriment (s 90(7)) or the provision would result in such benefit to the public that the conduct should be allowed (s 90(8) (9)) – the applicable test depends upon the conduct involved. Conduct prohibited by s 46 (misuse of market power) can not be authorised. In relation to mergers, authorisation applications now proceed directly to the Tribunal, rather than the ACCC.

Notification

Exclusive dealing

Section 93 provides that, in respect of exclusive dealing (including third line forcing) parties may obtain protection from liability by notifying the ACCC prior to engaging in the exclusive dealing conduct. Other than for third line forcing conduct immediate protection from contravention occurs upon notification and remains effective unless the ACCC revokes authorisation. The ACCC may only revoke authorisation if it is of the view that the conduct has the ‘purpose, effect or likely effect’ of SLC and there is no public benefit that would outweigh the anti-competitive detriment. Prior to revoking a notification the ACCC must provide notice to the applicant who must be given an opportunity to discuss their notice.

For third line forcing protection is not immediate, giving the opportunity for the ACCC to review the notice before protection begins. The ACCC may only revoke a third line forcing notification if satisfied that the likely benefit to the public will not outweigh the likely detriment from the conduct.

Collective bargaining

Notification is also possible in relation to collective bargaining by small business (Part VII Division 2, sub-division B); as with third line forcing, notification is delayed (14 days) until the ACCC has an opportunity to review the application and the ACCC must only revoke notification if the public benefit of the conduct would not outweigh the public detriment.

Information dissemination

(2) Examining and reporting to the Minister on laws in force relating to consumer protection: s 28(1)(b)

(3) Conduct research on matters affecting the interests of consumers: s 28(1)(c) TPA

(4) Conduct research and undertake studies on matters referred to it by the NCC: s 28(1)(ca) TPA

(5) Making available to the public general information on matters affecting consumer interests: s 28(1)(d)

(6) to make known to consumers rights and obligations of persons under the TPA provisions designed to protect consumers

Investigatory Powers

The ACCC has significant investigatory powers.

The main investigatory powers enjoyed by the ACCC can be found in s 155 of the Act. This provides the ACCC with the power to issue a notice requiring production of information or to appear and give evidence, where the ACCC has ‘reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act’. This power may be exercised any time until the ACCC commences proceedings, other than proceedings for an injunction, in which case the power extends until the close of pleadings in relation to an application for final injunction. Failure to comply with a s 155 notice, or providing false or misleading information, constitutes a criminal offence, punishable by a fine or imprisonment for up to 12 months.

The ACCC may also seek a search warrant pursuant to Part XID of the Act.

The parties may not rely on the privilege against self-incrimination to avoid furnishing information or producing documents sought under a s 155 notices or required by a search warrant (s 155(7) and 154X(3)), although information obtained in this way may not be used against an individual in criminal proceedings (other than proceedings relating to failure to properly comply with the notice or search warrant).

Parties do, however, have the right to rely on legal professional privilege as grounds to refuse production of documents: s 155(7A).

ACT (Australian Competition Tribunal)

Formerly the Trade Practices Tribunal. President and Deputy Presidents must be judges of the Federal Court. Members must be experienced in industry, commerce, economics or public administration.

The Tribunal’s main function is to hear appeals from decisions of the ACCC relating to authorisation and notification. There is also a review function in relation to the access regime.

The Tribunal’s powers have increased since the passage of the 2006 Amendment Act - importantly, the Tribunal now hears merger authorisations applications directly (see Part VII, Division 3, Sub-division C) and they hear appeals from formal merger clearance decisions of the ACCC.

Commonwealth Director of Public Prosecutions (CDPP)

The
CDPP now plays a role in competition policy. Since July 2009 a cartel offence has operated and it is for the CDPP (on the advice of the ACCC) to determine which matters will be prosecuted and to conduct the prosecution. They will do this in accordance with the Prosecution Policy of the Commonwealth.

NCC (National Competition Council)

The Council was introduced as a result of the Hilmer Reforms in 1995. It is composed of a President and three other members, having the primary roles of advising about competition law matters and making recommendations in relation to access declarations.

Federal Court of Australia

The Federal Court of Australia has primary jurisdiction in relation to competition law matters (to the exclusion of other courts). The Federal Court is also given exclusive jurisdictions under the state and territory Competition Codes.